Yesterday, I participated in a panel discussion hosted by the Madison Chapter of the Federalist Society, entitled “Separation of Powers: Wisconsin Supreme Court’s Decision Upholding the Collective Bargaining Law.”  The discussion was moderated by Justice Jon Wilcox of the Wisconsin Supreme Court (Retired) and along with myself the panel included Deputy Attorney General Kevin St. John, who argued the Ozanne v. Fitzgerald case on behalf of the State of Wisconsin.  The entire discussion was recorded by Wisconsin Eye and can be viewed at this link.

What follows are my prepared remarks.  However, I encourage interested readers to follow the above link in order to hear both Attorney St. John’s able defense of the Ozanne decision on separation of powers grounds, and also the questions and answers following our presentations.  I want to thank Andrew Cook and the Federalist Society for the opportunity to present my views.

Prepared Remarks

Mr. St. John has explained why we should adopt a strict, formalistic view of the separation of powers when interpreting our state Constitution.

With all due respect, that’s not his job.

I intend no personal criticism of Mr. St. John, but I am a taxpayer and I do pay part of his salary.

I therefore feel entitled to discuss the job of the attorney general of the state.

That job is not to advance a particular formalistic interpretation of the separation of powers.

How do I know? The Wisconsin Supreme Court said so in the City of Oak Creek case.  The duties of the Attorney General do not include challenging the constitutionality of statutes.

Beyond that, imagine if Attorney General Eric Holder came to speak before this group and said that he viewed part of his job to include advancing a broad interpretation of the Commerce Clause – we would tell him that it was not his job to advance a particular reading of the Commerce Clause, and we would be right.

In arguing what the law is, our state institutions charged with the administration of justice – and I would include here both the courts and the department of justice among those institutions —  should strive to adopt legal positions that , to borrow a phrase from Edmund Burke, “afford both certainty and stability to the laws.”  Our own administrators of justice should not adopt positions that unsettle the architecture of the law unless it is absolutely necessary.

I am not surprised when lawyers associated with think tanks or representing private litigants make arguments that seek to re-shape the existing architecture of the law.  However, I am disappointed when the state department of justice promotes such arguments, and I am doubly disappointed when the state Supreme Court rushes to embrace them without first thinking through the consequences.

I am a process conservative.  My core criticism of the decision of the Wisconsin Supreme Court in Ozanne v. Fitzgerald is that the Court chose to ignore the normal procedural process for taking up a petition for original jurisdiction, and instead invented a new form of jurisdiction called “supervisory/original” and rushed to decide questions of both statutory and constitutional interpretation.  Undoubtedly Justice Prosser and some of the other members of the Court felt that following the normal process of original jurisdiction would have dragged on too long, as it did a few years ago in the case of Green for Wisconsin, and so they were determined to avoid the same delay here.  However, if I had to choose between acting quickly, on the one hand, and the careful weighing all of the legal arguments, on the other, I would certainly choose the latter.

The court’s primary job is to interpret the law.  On the question of whether the case was even properly before the Court, the majority never articulates a general principle of law that both decides this case and that also can be applied to guide future cases of original jurisdiction.

Can parties who have an appeal from a circuit court decision nonetheless file an action for original jurisdiction directly with the Supreme Court, and in effect receive a “do over?”  Apparently the answer is “yes,” with no language in the opinion limiting when this type of forum shopping is appropriate and when it is not.

Under what circumstances is it appropriate to both grant a petition requesting original jurisdiction, and also proceed to the merits at the same time, skipping the separate step of briefing and argument on the merits as set forth in the statute?  The Nader case had combined these two steps on a very narrow set of facts, but there is no discussion by the majority of the Nader case or of how this case is similar or different to Nader.

Turning to the merits, the majority relied upon the separation of powers doctrine to hold that the Open Meetings Law cannot be enforced against the legislature by the courts, even though that is what the law says it intends.  However, the separation of powers argument is but one of several arguments that the Department of Justice tried on and cast off over the course of this litigation. 

First, that the Open Meetings Law did not grant Judge Sumi the authority to enjoin the publication of the act.  Clearly it did.

Second, that the Legislative Reference Bureau could, and did, publish the act independently of the Secretary of State.  The one thing that all seven justices agreed upon in the Ozanne decision was that the actions of the Legislative Reference Bureau had no effect.

Third, that the Secretary of State lacked the authority to rescind a publication date.  Again, all seven justices agreed that the law had not been published, so the Secretary’s rescission must have been effective.

Fourth, that there was no violation of the Open Meetings Law at all.  The facts at trial supported Judge Sumi’s conclusion that the statutory requirements were violated.

The procedural posture of the case I have already addressed.

Finally, the only argument left is that the Open Meetings Law cannot do what it says it does because the state constitution won’t allow it.  This is the argument that the majority adopted.

This was clearly an open question under the precedent.  Neither Goodland, the Stitt case, nor the Milwaukee Journal-Sentinel case dealt with the situation where the legislature passes a statute that fleshes out how a constitutional command will be effectuated, and that also empowers the courts to enforce the legislature’s compliance.  Does the existence of such a statute – the Open Meetings Law – alter the separation of powers analysis that applies in the absence of such a statute?

There is a strong argument that it should.

Constitutions are not statutes.  They are not drafted to include all of the details that a statute would include.  Instead, they include general commands and leave it to the legislature to pass laws effectuating those commands.  It would be absurd for the Wisconsin Constitution to include provisions stating the length of time necessary in order to constitute public notice, or the various types of notice (email, fax, newspaper publication) that satisfy the command of public notice.  How do I know it would be absurd to expect the Wisconsin Constitution to be so detailed?  Because time and time again the delegates to the state constitutional convention stated that constitutions should focus on generalities and should not include detailed provisions.

When the legislature passes a law providing the details of how a constitutional command will be satisfied, the legislature makes several policy choices.  For example, the legislature may decide that publication of a law in a newspaper is required, and it may even specify the particular newspaper of record.  

That policy choice might seem silly to us today in the age of internet communication.  Nonetheless, the courts should enforce that policy choice rather than substitute the policy preferences of the judiciary.  A judge might feel that posting the text of a bill on a website is just as good as publishing the text in a newspaper – or a judge might feel that televised legislative proceedings are just as good as the actual presence of the public in the room.  However, this is not the judge’s policy choice to make.

This is not the same as asserting that the statute has amended the Constitution.  The legislature is always free to amend or repeal its own statutes and to choose a different means of effectuating the constitutional requirement in the future.

For the most part, the judiciary should merely enforce the policy choices of the legislature on how best to satisfy the constitutional requirement.  If, on the other hand, the legislature repealed all existing methods of publication, and substituted instead a provision stating that any law is considered to be published if a single copy is mailed to Ed Fallone, then, in a proper case, the judiciary would have no choice but to consider whether this specific procedure satisfies the constitution’s general requirement that the laws be “published.”

This is the way the process is intended to work.  What are the benefits of such a process?  Certainty and stability.  

Ironically, by not deferring to the policy choices contained in the Open Meetings Law, the majority of the Court substitutes their own policy choice.  Televised proceedings and the presence of the media are apparently enough to satisfy the constitutional command of open doors.  Why?  Because the majority of the state Supreme Court say so.  “Access was not denied,” they declare.

What are the minimum requirements necessary in order to satisfy the open doors command?  We don’t know.  A detailed and predictable statutory procedure is replaced with the need to litigate future cases and await further development from the judiciary.

 Under the Open Meetings Law, everyone knew how much notice was required and whether actual physical access had to be available.  Now there is no standard.

I certainly do not believe that the syllogism put forth by the Deputy Attorney General at oral argument, that “the lack of absolute secrecy = open doors,” withstands any sort of scrutiny.  Is the presence of one person in the room sufficient to satisfy the constitutional requirement?  What if the committee is discussing a bill to regulate the mining industry and the only person present in the room is a mining company executive?  The proceedings are not absolutely secret, but no one would suggest that the public’s right of access had been served.

Much also depends upon whether the open doors provision embodies an individual right.  After all, I have an individual right to confront my accuser in a criminal trial.  This right is not satisfied by a closed circuit video link.  So should my right to observe the workings of the state government be limited to watching an internet feed? 

But let us turn to the issue of the separation of powers.  It is undeniably true that making law falls within the core of the legislative function.

However, saying what the law is falls within core of the judicial function.  That is what the courts do when they engage in the process of judicial review.

Judicial review raises separation of powers concerns all the time because the act of saying what the law is often interferes with the exercise of another branch’s core functions.  The appointment of an executive branch official falls within the core of the executive function, yet the US Supreme Court decided whether such an appointment was final in Marbury v. Madison.  The confidentiality of executive branch deliberations falls within the core of the executive function, but the US Supreme Court rejected a claim of executive privilege in US v. Nixon.  Neither of those cases dealt with the judicial interpretation of whether the actions at issue violated a specific constitutional provision, which Mr. St. John’s argument seems to suggest is necessary in order to support judicial review. 

In fact, the US Supreme Court has never applied the strict and formalistic conception of separation of powers to the process of judicial review in the way that Mr. St. John advances and that the majority in Ozanne accepted.

I believe that the correct approach to the separation of powers in these circumstances was summarized accurately in a 1986 article in the California Law Review (Comment, James Castello, The Limits of Popular Sovereignty, 74 Cal. L. Rev. 491):

“The reason for judicial non-intervention in matters of legislative procedure is not that such rulemaking is an inherent right or that externally imposed rules will cripple the lawmaking process.  Rather, judicial intervention usually substitutes a judge’s opinion for legislators’ opinions.  This substitution is, as the Ninth Circuit observed, “a perversion of the judicial process into a political process.”  Judicial second-guessing in these cases violates the separation of powers and upsets the balance of powers, but it does not abridge any ‘natural rights’ of legislatures.”

(emphasis added)

If we use this standard as a guide to the separation of powers, it is clear that Judge Sumi did not seek to replace the legislature’s definition of open meetings with her own.  Rather, she merely followed the policy choices of the legislature.

How should the Court deal with a statute like the Open Meetings Law that fills in the details of a constitutional requirement and then empowers the courts to enforce the law?

A strong argument can be made that the Court should hold the legislature to its self-imposed procedures.  Separation of powers principles will not be threatened if the Court simply limits the judicial enforcement of legislative procedures in two ways: 1) such review should only be available where the enforcement power is granted to courts by statute in order to ensure compliance with a constitutional command and 2) the Court should adopt an evidentiary rule that the official journal of proceedings shall constitute the conclusive evidence of whether the required procedures were in fact followed (thereby obviating the need for any contentious fact finding by the court).

Such an approach would be fully consistent with the Goodland, Stitt and Milwaukee Journal Sentinel cases (See, e.g., Stitt, 114 Wis. 2d at 365: “[T]he legislature’s adherence to the rules or statutes prescribing procedure is a matter entirely within legislative control and discretion, not subject to judicial review unless the legislative procedure is mandated by the constitution” ) (emphasis added).

I believe that, had the majority opinion taken the time to parse through the issues and examine the arguments on both sides, the justices would have realized that the separation of powers question was not as simplistic as the Department of Justice claimed, and that greater certainty and stability in the law would follow the adoption of the interpretation that I describe.